Last
Monday, the Justice Department, at the direction of Attorney General John
Ashcroft, informed the Supreme Court that the official government interpretation
of the Second Amendment had changed.

The government now believes the Second Amendment protects an individual
right to keep and bear arms. This restores the government position to
its original status prior to 1939 and was immediately followed by ritual
posturing from activists on both sides of the gun debate.

The anti-gun lobby loves the theory that the right to keep and bear arms
is not an individual right, as are all the others mentioned in the Bill
of Rights. In a tortuous revision of history, they claim it only applies
to the collective rights of state governments.

Legions of legal scholars have been coming out against this non-intuitive
interpretation for the last two decades and the gun haters are terrified
that their carefully manufactured, but indefensible position will finally
collapse like a house of cards.

Pro-gun activists are upset that the Justice Department qualified their
support for individual rights by stating that the government can determine
who is fit to own a gun and what kinds of guns are acceptable.

Their anger was tempered by their enjoyment of the hysterical reaction
from the elite media. The amazing statements contained in many media articles
and editorials betray a startling ignorance of the facts.

A brief look at history should put this in context. Prior to 1939, the
right to keep and bear arms was universally understood as a basic human
right. For Americans, this belief was so strong that there was little
mention made of it. There was no more reason to argue in favor of the
Second Amendment than there was to argue that the sky was blue or the
earth round.

The earliest gun control laws, in the post-civil war era, met little
resistance, because they were only directed at blacks. They required gun
permits issued by white sheriffs and prohibited "Saturday Night Specials"
that blacks could afford. Versions of these racist laws are still in effect
in some states and are popular with the anti-gun lobby.

New York's Sullivan Law of 1911 also required a permit to own a gun.
It was only applied to immigrants, who threatened the societal status
quo. Lacking political power of their own, they were helpless to oppose
the law.

The first federal gun control law was passed in 1934 to keep certain
types of guns away from immigrants, communists and union organizers. Like
many federal laws passed at the time, it was widely thought to be an unconstitutional
expansion of federal power.

The legal turning point occurred in 1939 when the infamous Miller case
came before the Supreme Court. No argument was offered on behalf of Mr.
Miller, who was conveniently deceased at the time, so the court had no
choice but to find in favor of the government.

The case was a setup, intended to protect the unconstitutional law passed
in 1934. The justices tried to limit the damage by confining their opinion
to a very specific issue, but the case has been abused and distorted beyond
recognition by judges and prosecutors. It is often misrepresented in publications
with an anti-gun bias.

A classic example of this occurred last Wednesday in the New York
Times. Here is a quote from the Times article about the Justice Department
controversy:

"The court's view has been that the Second Amendment protects only
those rights that have 'some reasonable relationship to the preservation
of the efficiency of a well regulated militia,' as the court put it
in its last word on the subject, a 1939 decision called United States
v. Miller."

Here is the full sentence from the Miller opinion. Remember that
nobody showed up in court to defend Miller when you read the first phrase,
"In the absence of any evidence." The justices meant exactly
that.

"In the absence of any evidence tending to show that possession
or use of a 'shotgun having a barrel of less than eighteen inches in length'
at this time has some reasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the Second Amendment guarantees
the right to keep and bear such an instrument."

What the court really said in 1939 is that the Second Amendment protects
only weapons suitable for military use. Today that would include M16s
and other serious hardware. If Miller were interpreted literally,
many current gun laws could be reversed.

Understandably reluctant to follow this directive, lower courts developed
their own local interpretations. Given the elite position that judges
hold in society, it is no surprise that they generally dislike the idea
of guns in the hands of ordinary folk.

The Supreme Court has been silent for the last sixty-two years, permitting
the development of our current crazy patchwork of conflicting, illogical,
unpopular, inequitable and counterproductive gun laws. None have ever
been proven to reduce violence and many scholars say they make things
worse.

Attorney General Ashcroft deserves credit for taking a first small step
toward re-establishing a logical legal base for America's gun laws.